Electrical Distributors of WA Pty Ltd v Matthews - [2022] WADC 62

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   ELECTRICAL DISTRIBUTORS OF WA PTY LTD -v- MATTHEWS [2022] WADC 62
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   3 MARCH 2021
DELIVERED          :   30 JUNE 2022
FILE NO/S:   CIV 2028 of 2020
BETWEEN:   ELECTRICAL DISTRIBUTORS OF WA PTY LTD
Plaintiff
AND
BRETT STEWART MATTHEWS
First Defendant
PIA MATTHEWS
Second Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court 1971 (WA) - Summary judgment - Admissibility of parts of affidavits - Sufficiency of evidence - Turns on own facts

Legislation:

Nil

Result:

Application successful in part

Representation:

Counsel:

Plaintiff	:	Mr B Havilah
First Defendant	:	Not applicable
Second Defendant	:	Mr J E Scovell

Solicitors:

Plaintiff	:	Havilah Legal
First Defendant	:	Not applicable
Second Defendant	:	Mills Oakley

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HARMAN:

The plaintiff's claims in the action are made pursuant to guarantees given by each of the defendants.
The plaintiff pleads that by their execution of an agreement entered into on or around 26 September 2019 between itself and RNM Solutions Pty Ltd each of the defendants agreed that they would be jointly and severally liable for any debt accrued by RNM Solutions Pty Ltd under the agreement. In accordance with the agreement the plaintiff provided goods to RNM Solutions Pty Ltd and its invoices for the goods along with specified amounts generated by the terms of the agreement have not been paid.
RNM Solutions Pty Ltd is in liquidation and the first defendant is bankrupt. By the application presently before the court the plaintiff seeks summary judgment against the second defendant. Judgment is sought as follows:
(i)$283,172.58 in unpaid invoices;
(ii)$28,317.25 being the collection costs incurred by the plaintiff to 30 March 2020;
(iii)$59,376.47 being 2% interest on the invoiced amounts outstanding calculated monthly from the due date of invoice to 14 October 2020;
(iv)further or alternatively, damages for breach of contract;
(v)interest on damages; and
(vi)costs.
The application is opposed. The cases that the second defendant puts against the plaintiff are that the court should not enter judgment for the plaintiff because it acted unconscionably in obtaining the second defendant's guarantee; that it would be unconscientious for the plaintiff to enforce the guarantee; and that either the guarantee or only the charge it contains be set aside on the basis that it is unfair.
The evidentiary onus on each party to an application for summary judgment is the same as that which applies in any interlocutory application: to ensure that there is support for any submission that it cares to make.
By the date of the hearing each of the parties to the application had filed an affidavit and submissions.
The task that confronts the plaintiff is to persuade the court that despite the cases and any issues raised by the second defendant, its case in the application is sufficiently clear to justify an exercise of discretion in its favour. Prior to the exercise of discretion no assessment of the case of an applicant would confer an entitlement to judgment regardless how its expression may be qualified.
In resisting the application, the second defendant would not be required to establish the cases she articulates. The material that she provides in the form of depositions and submissions should be scrutinised in order to establish whether it is either sufficient to justify dismissal of the application or have some bearing in considering an exercise of discretion whether or not to enter judgment for the plaintiff.
The following history is not contested. On 20 September 2019 RNM Solutions Pty Ltd utilised a form that had been provided to it by the plaintiff to apply to the plaintiff for particular terms of trade. As a part of that application it provided the guarantee of the first defendant. On that day in communicating its rejection of the application, the plaintiff requested that RNM Solutions Pty Ltd provide a guarantee of the second defendant. On 26 September 2019 the second defendant signed the same application as guarantor. The application RNM Solutions Pty Ltd then submitted provided guarantees of each of the defendants: that given on 20 September 2019 by the first defendant and that given on 26 September 2019 by the second defendant. Upon its acceptance of the application the plaintiff supplied RNM Solutions Pty Ltd with goods the subject of its relevant invoices for which it has not been paid.
At the hearing no issue was raised regarding supply, the invoices or interest.
In anticipation that the second defendant would present cases in the application of which it had been put on notice, the following additional history of the relationship between the plaintiff and RNM Solutions Pty Ltd was provided by the plaintiff. In January 2012 RNM Solutions Pty Ltd had applied to the plaintiff for terms of trade similar to those that applied to the relevant supply. The form that the plaintiff had then provided to RNM Solutions Pty Ltd was not the same as that utilised by RNM Solutions Pty Ltd in September 2019. The application presented to the plaintiff by RNM Solutions Pty Ltd on or about 9 January 2012 had included guarantees of each of the defendants.
On or around 26 July 2019 after the request of the plaintiff RNM Solutions Pty Ltd had utilised the same form of application that it later utilised in September 2019 to similarly apply, however when submitted to the plaintiff, parts of it had been deleted. One such part was that by which a guarantee would be provided.
None of that additional history is contested.
The affidavit filed in support of the application is of Konstantinos Dimitropoulos. He describes himself as Group Credit and Legal Manager and is employed by L & H Group Services. He deposes that he has direct responsibility for the plaintiff. There is nothing that explains the meaning of that deposition.
Dimitropoulos designates the applications as the first to the fourth. The first dated 9 January 2012 and fourth dated 26 September 2019 each included guarantees of the second defendant; the provision for a guarantee had been deleted from the second and the third provided the guarantee of the first defendant only.
On or around 26 July 2019 Dimitropoulos had reviewed the credit arrangements between the plaintiff and RNM Solutions Pty Ltd and requested of RNM Solutions Pty Ltd that it make 'a further application for credit'. He does not specify the reason for either the review or explain that specification of the terms of the request. He determined that the second application was not acceptable. He rejected the third and informed 'John Eddy of RNM Solutions Pty Ltd' that the plaintiff also requested a guarantee of the second defendant. Upon receiving the fourth application he 'continued to extend further credit to RNM Solutions Pty Ltd in accordance with the terms of the third application'.
It is open to consider that he intended to refer to the fourth application. There is nothing that would establish the meaning of the words 'continued to extend further credit'.
The second defendant refers to the affidavit of Dimitropoulos. She adopts his designation of each application. She states that the amount sought to be recovered from her by the plaintiff is under the fourth application. It is open to consider that she intended to refer to her guarantee which is part of that application.
Dimitropoulos identifies and annexes a true copy of the first application. He states that it had been received by the plaintiff on or around the date specified on the application, refers to the terms of the guarantees of the defendants and states that upon its acceptance, the plaintiff had commenced supplying and delivering goods to RNM Solutions Pty Ltd.
Unlike the evidence that he gives of his involvement in the events of the period from July to September 2019, there is nothing to suggest that he had received the first application or had any involvement in either any process commenced upon its receipt or with any subsequent supply to RNM Solutions Pty Ltd. Indeed, there is no admissible material that suggests that eight years prior to the date of his deposition Dimitropoulos had any involvement in the business of the plaintiff.
Order 37 r 6 of the Rules of theSupreme Court 1971 (WA) provides in part as follows:
(1)An affidavit must be confined to such facts as the deponent is able of his or her own knowledge to prove.
(2)Despite subrule (1), an affidavit may contain statements of information or belief if -
…
(b)the affidavit is made under a provision of these rules that permits it to contain such statements, or
…
Order 14 r 2 provides in part as follows:
(2)Unless the Court otherwise directs, an affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.
Dimitropoulos deposes that:
3.Unless otherwise stated, the following facts attested to are true within my own knowledge. Where any fact deposed to is not within my own knowledge, they are true to the best of my knowledge, information or belief and I state the source of that knowledge, information or belief.
In circumstances where there is scope for doubt that material is provided on the basis of knowledge, par 3 would not operate to resolve that doubt.
The second sentence of par 3 also reveals that the discrete features of the process by which statements of information are admissible had not been considered by the deponent.
Although there is no difficulty in accepting that the copy of the first application produced by Dimitropoulos is a copy of the document he describes, there is no resolution of the doubt generated by the presentation of the balance of the material presented by Dimitropoulos.
As statements of information their source would not be identified and there would be no ground to establish the deponent's belief in the accuracy of the information.
It would be unsafe to accept as admissible the deposition that the first application had been accepted by the plaintiff and that the plaintiff had commenced supplying and delivering goods to RNM Solutions Pty Ltd.
Although the deposition that after approval of the fourth application the plaintiff 'continued to extend further credit to RNM Solutions Pty Ltd', may be taken to suggest that on 26 September 2019 a credit arrangement between the plaintiff and RNM Solutions Pty Ltd had existed, there is nothing to establish that it had been referable to the first application.
In presenting its case the plaintiff suggested that its request of July 2019 to RNM Solutions Pty Ltd had been precipitated by the extent to which RNM Solutions Pty Ltd had then utilised a credit facility. To be precise, that it had perceived a need to increase the limit of a credit facility that it had provided to RNM Solutions Pty Ltd which was then being utilised at, near or over its limit.
The fact that no issue was taken with that suggestion does not establish the proposition that at the time that the plaintiff issued its request in July 2019, RNM Solutions Pty Ltd had either been indebted to the plaintiff or had been so indebted to any particular extent.
The second defendant recites the content of email communications between the plaintiff and RNM Solutions Pty Ltd of late July 2019 which on the part of the plaintiff refers to 'the current limit we have in place' and that '[RNM Solutions Pty Ltd] will not be able to get a limit increase without further financial information'.
The deponent identifies the source of that information by reference to attachments to her affidavit. There is no deposition that relates to the content of those emails. There is no admissible material that establishes the content of those emails as admissible.
Between 2009 and 2015 the second defendant had been a director of RNM Solutions Pty Ltd, she deposes that she had always viewed RNM Solutions Pty Ltd as her husband's business; he had complete control of the business; and she had never been involved in decision‑making for the business.
The second defendant deposes that on 26 July 2019, the date of the second application, her role within the business was purely administrative. She illustrates that characterisation of her role by referring to answering telephone calls and assisting with accounts payable.
When she signed the fourth application on 26 September 2019, under the second defendant's signature where there is provision for insertion of the guarantor's position, appear the words 'business manager'.
The second defendant deposes that she had been given that title by her husband and states that he had done so to make her feel more involved in the business of RNM Solutions Pty Ltd. She deposes that at all relevant times her actual role was administrative.
Regardless the issue of the admissibility of the statement of her husband's intention, there is nothing to indicate when the title had been conferred.
In a communication between RNM Solutions Pty Ltd and the plaintiff dated 15 August 2019, the designation 'business manager' appears under the second defendant's name. Ostensibly she is the author of the letter.
By the terms of the communication the second defendant enquires as to progress in processing information; asks for a date for an answer to the second application; enquires if more information or clarification was required; and if so, to revert to her.
The content of the communication would not match the illustrations that the second defendant gives of the activities involved in performance of her administrative role at 26 July 2019. It provides scope to consider that the title had been conferred within the period of some 20 days following the date of the second application and that by 15 August 2019 her administrative role was no longer defined by the illustrations that she provides of her role for the purposes of her deposition that relates to 26 July 2019.
Scope for doubt regarding the second defendant's role within the business of RNM Solutions Pty Ltd after mid-August 2019 emerges in a context where there is no material that would establish the nature of her relationship with RNM Solutions Pty Ltd at any time after the conclusion the period of her directorship and where Dimitropoulos deposes that the relevant communications for the purposes of the plaintiff's case had been conducted between himself and John Eddy of RNM Solutions Pty Ltd. The second defendant gives no evidence to establish either the nature of Eddy's relationship with RNM Solutions Pty Ltd or his role in its business.
The date of the first defendant's execution of the third application is recorded on the document produced by Dimitropoulos as 20 September 2019. The evidence he presents that bears upon the circumstances leading to the second defendant's provision of a guarantee are that on 20 September 2019 he had sent an email to Eddy in which he had asked if the second defendant could also sign. On 25 September 2019 he sent an email to Eddy and asked him to advise as to progress in completing the credit application and referred specifically to its execution by the second defendant. The date of the second defendant's execution of the fourth application is recorded on the document produced by Dimitropoulos as 26 September 2019.
Although Dimitropoulos deposes to his receipt of a communication from Eddy on 20 September 2019, the information that it conveys: that the second defendant was not in the office that day and that he would arrange to have the application executed and forwarded to the plaintiff on Monday, is presented absent any statement of belief in what had been conveyed. The statement of belief expressed at par 3 of his affidavit is insufficient to establish ground for belief in the information that he presents.
Although the second defendant deposes to having read the deposition of Dimitropoulos, she does not provide either evidence or a statement of belief in relation to the information he provides.
The information provided by Dimitropoulos that the second defendant was not in the office that day and that Eddy would arrange to have the application executed and forwarded to the plaintiff on Monday is not admissible.
The second defendant's response to that part of the affidavit of Dimitropoulos is that she recalls that Eddy approached her '… on or around 20 September 2019 confirming that the plaintiff had requested I sign a credit application as guarantor …'.
It is unclear whether Eddy's approach had been made on 20 September 2019. Because she uses the word 'confirming' to convey what Eddy had told her, the second defendant suggests that she had previously been so informed. Whether his approach had been the first notice she had of the plaintiff's request is unclear.
The second defendant's response to Eddy was that she should not be signing the application as she was not a director, that she did not feel comfortable signing any documents for RNM Solutions Pty Ltd and to question why the plaintiff needed her to sign the document. Her response suggests that it had been given to the terms by which the plaintiff had communicated its request rather than by Eddy's translation.
The second defendant gives no evidence that explains the reason for her to repeatedly ask Eddy to relay her response to the plaintiff. It is open to consider that the need for repetition may be explained by the relationships between RNM Solutions Pty Ltd and each of the second defendant and Eddy.
According to the second defendant, on or around 20 September 2019 Eddy informed her that he had communicated her response to Dimitropoulos by email and that Dimitropoulos had replied 'it doesn't matter; I still need [the second defendant] to sign it or we won't supply the goods for the project'.
Dimitropoulos produces what he describes as copies of email correspondence with Eddy between 20 September 2019 and 25 September 2019. None of those communications suggests that it is either Eddy's communication of the second defendant response to the plaintiff's request or the response of Dimitropoulos to which the second defendant refers. That said, he does not depose that the emails he produces are the only communications had with Eddy in that period by that means.
In the course of the second defendant's submissions she proposed that because the plaintiff had not responded to her affidavit, its content must be accepted.
In the context provided by an application for summary judgment, an applicant would require leave to rely on the content of an affidavit in response. Because the context would not provide for the determination of a factual dispute, the scope for such a grant of leave is regarded as narrow. The fact that the plaintiff has not filed an affidavit in response is unremarkable.
The second defendant provides no statement of belief to establish either of the communications between Eddy and Dimitropoulos or their content as admissible.
By not deposing to her belief in the information provided by Eddy, that the communications between Dimitropoulos and Eddy had been undertaken and that their content had been as she deposes, it is implicit that the second defendant would rely upon an inference being drawn by the reader that she intended that the deposition to belief expressed in par 4 of her affidavit would establish the information as admissible.
Paragraph 4 of the second defendant's affidavit is as follows:
4The contents of this affidavit are true to my knowledge, unless otherwise stated, in which case they are true to the best of my information and belief and the source of my information and belief is stated.
There would be no point in drawing the inference suggested because the mechanism constructed by par 4 would not establish grounds for the second defendant's belief in the matters of which she had been informed. The deposition to belief that par 4 provides is no more than an unsupported conclusion that the unspecified information with which it engages is true. It would be insufficient to establish that the second defendant believed both the information that the communications between Dimitropoulos and Eddy had been undertaken and that their content had been as she deposes. The statements regarding the communications and their content are not admissible.

Whatever the extent of the period prior to her execution of the guarantee during which the second defendant had been aware of the plaintiff's request had been, apart from the prospect that Eddy's approach and the first defendant's departure overseas on 23 September 2019 were located within it, the only evidence of the second defendant that relates to it is that '[a]t all stages I informed Eddy that I was not comfortable signing a guarantee and did not see that it was necessary; I was not a director of RNM Solutions Pty Ltd and asked that this position be made clear to the Plaintiff'.
As what the second defendant had informed Eddy 'at all stages' was significantly different to her response to the plaintiff's request, I take it that his approach with the plaintiff's request had not been such a stage. There is no evidence that her husband's departure on 23 September 2019 had resulted in any relevant engagement by the second defendant with Eddy. As the second defendant deposes that she does not recall signing the guarantee, although that event may be taken to be a stage, at the time of her deposition she was evidently unable to recall whether she had then so informed Eddy.
Before proceeding any further, the relevant period to which reference will be made in these reasons is the period prior to the second defendant signing the fourth application during which she had been aware of the plaintiff's request that she sign the fourth application. The relevant date to which reference will be made is the date of execution of the fourth application by the second defendant as guarantor.
It may be that the second defendant had intended that her 'at all stages' deposition would be taken by the reader to align itself with her depositions to conversations that she had with Eddy at unspecified times in the relevant period. Those she presents in two paragraphs.
In the first she refers to a 'number of conversations' with Eddy 'around this time' by which she had been informed that Dimitropoulos had told him that the plaintiff would not supply RNM Solutions Pty Ltd until the second defendant had signed the fourth application.
That information is not supported by any statement of belief. Recourse to the deposition to belief in par 4 would generate no more than an unsupported conclusion. That result would not justify drawing an inference that in presenting the information without a statement of belief, the second defendant had intended to rely on par 4.
In the second, the second defendant states that between 20 September 2019 and 26 September 2019 she had been under immense pressure to sign the application. She attributes that pressure to Eddy telling her on numerous occasions that Dimitropoulos was putting pressure on him that she sign the application.
Because the second defendant specifies the period during which she had been under immense pressure to sign the application as being between 20 September 2019 and 26 September 2019, suggests that the commencement date of the relevant period had been no later than 20 September 2019.
For the purposes of considering the significance of the statement it would be useful to have evidence of the relationship of each of the second defendant and Eddy with RNM Solutions Pty Ltd.
Although the second defendant deposes to the pressure she felt and that the reason for that feeling had been what she had been told by Eddy, she provides no statement of belief for what he had told her.
Recourse to the deposition to belief in par 4 would generate no more than an unsupported conclusion.
Neither the statement that she had been informed by Eddy that Dimitropoulos had told him that the plaintiff would not supply RNM Solutions Pty Ltd until the second defendant had signed the fourth application nor the statement that Eddy had told her that on numerous occasions that Dimitropoulos was putting pressure on him that she sign the application is admissible.
In the result, the second defendant's 'at all stages' deposition is rendered as being without any specification of any time at which it had been communicated. Being different to her initial response to the plaintiff's request, it suggests that at some point prior to its first expression, she had reflected upon at least the terms by which the plaintiff's request had been conveyed to her by Eddy.
Because the content of the email communication from Dimitropoulos to Eddy of 25 September 2019 makes no reference to any part of the content of the second defendant's 'at all stages' deposition, it is open to consider that the plaintiff had been unaware of the content of the second defendant's 'at all stages' statements to Eddy. There is no admissible material that suggests that the content of the second defendant's 'at all stages' deposition had been conveyed by Eddy to the plaintiff.
Neither the second defendant's initial response to the plaintiff's request nor the content of her 'at all stages' deposition convey a refusal to comply with the plaintiff's request. It is open to consider that when they had been expressed each had been intended to convey that she would not then be doing so.
The second defendant gives no evidence that suggests that prior to reading his affidavit, she had been aware of the request by Dimitropoulos of Eddy of 25 September 2019 by which he seeks information regarding progress in her provision of the guarantee.
The first of two depositions provided by the second defendant that relate to her execution of the fourth application is that she believes that it is likely she did so at the office of RNM Solutions Pty Ltd with Eddy.
By that deposition the second defendant not only projects information with no specified source, she also expresses an unfounded conclusion of belief. The deposition that it is likely she signed the document at the office of RNM Solutions Pty Ltd with Eddy is inadmissible.
The second deposition of the second defendant that relates to her execution of the fourth application is that she does not recall reading the fourth application at the time of signing, that she did not understand the significance and the consequence of what she was signing and was not aware that the plaintiff could sue her personally for amounts outstanding to it by RNM Solutions Pty Ltd.
The second defendant does not provide any deposition on the subject of the whereabouts of the document in the relevant period. Other than there being a prospect that she did not read it at the time of signing, there is no deposition to whether or not she had previously done so.
Her deposition that at the time of signing she did not understand the significance and consequences of what she was doing provides conclusions unsupported by material that would explain their expression. That observation is made in relation to a context in which her 'at all stages' deposition not only reveals that she had understood the plaintiff's request but also provides scope to consider that she had been aware of matters upon which she had drawn for the purpose of her deposition that her provision of a guarantee had not been necessary. Although the projection of the issue of necessity is framed by reference to the date of deposition, the reasons for the second defendant's view refer to security being for the benefit of the plaintiff and to its exposure to the risk of the consequence of supply under a then unfilled purchase order. There is no reason to consider that those considerations had only come to mind at or about the time of deposition. The second defendant had been aware that by the first application she had previously provided a guarantee to the plaintiff and that the parties to each of the first and the fourth application were the same.
The first case addressed by the second defendant is that judgment should not be entered against her because at the time she signed the fourth application as guarantor she had been subject to special disability and the plaintiff had acted unconscionably in obtaining her guarantee.
In resisting the application for summary judgment, the second defendant would not be expected to establish that case, however the material that she provides in the form of depositions and submissions should be subject to scrutiny to determine whether there is sufficient reason to either justify dismissal of the application or to have a bearing upon an exercise of discretion whether or not to enter judgment for the plaintiff.
One of three grounds by which the second defendant submits that on the relevant date she had been subject to special disability is the threat to the business of RNM Solutions Pty Ltd if credit was not advanced to it by the plaintiff. At a later point in her submissions the threat is specified as RNM Solutions Pty Ltd having to pay 'liquidated damages' if credit was not advanced to it by the plaintiff.
In putting the proposition that due to the threat she had been under special disability, the second defendant expressly draws upon three beliefs that she deposes she had held on the relevant date. The first, that she believed that if she did not sign the fourth application there would be significant consequences for RNM Solutions Pty Ltd; the second that she believed that the plaintiff was unwilling to negotiate the terms of the fourth application; and the third, that she believed that she had to sign or RNM Solutions Pty Ltd would suffer.
Before considering that material, throughout her affidavit and her submissions the second defendant refers to the business of RNM Solutions Pty Ltd as her husband's business. She deposes that he is currently its sole director. She does not identify the shareholders but according to the record produced by Dimitropoulos they are the second defendant and her husband. The second defendant would be interested to ensure that RNM Solutions Pty Ltd prospered. The benefit of the reader drawing that inference would not extend beyond what may be characterised as superficial considerations. It remains for the second defendant to establish the measure of any deficit in her understanding of the operation of a business by a corporation with limited liability.
In deposing to the subject of each of the beliefs the second defendant does not specify information, identify its source, specify her belief in the information and give the reasons for her belief. She leaves it to the reader to consider whether there is material to which the statements of belief may be taken to engage and whether it would be appropriate to draw an inference that a sufficient connection be recognised.
The second defendant's belief that the plaintiff was unwilling to negotiate the terms of the fourth application does not expressly engage a deposition at an earlier point in her affidavit that her husband had informed her that he had tried to negotiate the terms of the credit contract and that the plaintiff would not allow any variation of the contract terms.
Whether an inference would be drawn emerges in a context established by one of the second defendant's cases in the application. In presenting that case she carries the evidentiary burden. She has provided no evidence of any difficulty in presenting support for her belief that the plaintiff would not negotiate the contract terms.
Drawing the inference to establish the second defendant's deposition of belief as admissible would not be straightforward.
The second defendant's belief that the plaintiff would not negotiate the contract terms is expressed to have been held on 26 September 2019. The date on which her husband informed her that the plaintiff would not allow any variation of the contract terms is not specified. On 23 September 2019 the second defendant's husband had left Australia and did not return until 28 September 2019. There is no admissible material to establish that during the period that her husband was overseas there had been any communication between them. The context suggests that had the second defendant been so informed it had been either prior to her husband leaving Australia or upon his return.
Had the second defendant been so informed during the relevant period prior to her husband leaving Australia, there is scope to consider that her belief had either existed or been in the process of development prior to the relevant date.
An unusual feature of the second defendant's deposition relating to the information provided by her husband is that without any explanation she draws the reader's attention to the second and third applications. A comparison of the applications reveals that unlike the third application the second had been amended by a series of deletions.
Prima facie it appears that rather than the referral to the applications, being a deposition, the second defendant is providing the outline of a submission.
The complication that would emerge in utilising the second application to contend for the proposition that the plaintiff was unwilling to negotiate the terms of the fourth application is that despite Dimitropoulos deposing that he determined that the second application was not acceptable to the plaintiff due to the terms that were struck through in the credit application, there is no admissible material to establish that prior to the date of service of his affidavit either that determination or the reason for the determination had been communicated to anyone. As for the third application, there is nothing to indicate when the second defendant had become aware of its existence.
The fundamental consideration that would tell against drawing the inference that the statement of belief that the plaintiff would not negotiate the contract terms had been informed by her husband is that as there is nothing to suggest that the second defendant had contemplated either negotiating the terms by which she would provide a guarantee or had contemplated taking any step in the process of seeking to do so, there would be no reason to do so.
There is nothing in either the admissible material or the submissions that would suggest any connection between the contended unwillingness of the plaintiff to negotiate the terms of the fourth application and the generation of any consequence for the second defendant. There is no reason to consider that the contended unwillingness of the plaintiff to negotiate the terms of the fourth application would generate or contribute to the special disability for which the second defendant contends.
There is no reason to consider drawing an inference that would permit the admission of either the second defendant's belief or the information provided by her husband.
Due to the absence of both any useful submission and a corresponding deposition it is not possible to discern how the second defendant's belief that the plaintiff was unwilling to negotiate the terms of the fourth application had either established or contributed to a threat to RNM Solutions Pty Ltd in the form of having to pay liquidated damages if credit was not provided to it by the plaintiff.
The first and third of the beliefs held by the second defendant on the relevant date: that if she did not sign the fourth application there would be significant consequences for RNM Solutions Pty Ltd and that she had to sign or RNM Solutions Pty Ltd would suffer, present the same conclusion differently expressed. As the second defendant does not specify the information to ground each belief it may be that she would have the reader infer that she had drawn upon some part or parts of the scope of the material she presents that relates to RNM Solutions Pty Ltd.
The second defendant identifies and produces a purchase order of RNM Solutions Pty Ltd dated 11 September 2018. She states that it had been provided to the plaintiff for light fittings required for the Butler North Project.
It is open to consider that in undertaking some role either within or for RNM Solutions Pty Ltd, the second defendant had been involved in either or both the generation and provision of the purchase order and accordingly could speak for the purpose for which the light fittings were required.
On 26 July 2019, the second defendant's role in the business of RNM Solutions Pty Ltd had been administrative and in accordance with the illustrations that she provides. Other than on that day her role in the business of RNM Solutions Pty Ltd is unclear.
There is nothing to suggest her engagement in any process that relates to the generation of the purchase order or its provision to the plaintiff. Accordingly there is scope for doubt that in presenting the purpose for which the light fittings had been required, the second defendant does more than present information.
That doubt is enhanced by a statement of information that one of six specified matters of which the second defendant had become aware 'through conversations with Brett and [Eddy]' was the purpose for which the light fittings had been required.
The second defendant does not specify whether it was by her husband and Eddy, or by one or the other of them that she had been informed of the purpose for which the light fittings were required.
The other five matters of which she states that by August 2019 she had been made aware embrace that the purchase order had been issued to the plaintiff approximately one year earlier; that as a consequence of construction delays the relevant project had been delayed; those construction delays had resulted in delayed supply under the purchase order; as the project was nearing completion in September 2019 the plaintiff was putting pressure on RNM Solutions to enter into a supplier credit contract in its standard form; RNM Solutions Pty Ltd had to use the plaintiff on the project; and her husband had crossed through the terms of the second application that he thought were unnecessarily onerous on him or unreasonable.
By rolling up six matters with two informants in the course of more than one conversation, the second defendant has embarked upon a course that results in her failure to identify the source of information for the purposes of each statement. Furthermore, there is no statement of belief in relation to the subject of each of those statements.
At each point that the second defendant deposes to the purpose for which the light fittings had been required, her statement is not admissible. The same result applies to each of the other statements drawn from the unspecified conversations with her husband and Eddy.
In introducing her communication with the plaintiff of 15 August 2019 by which she had sought an update on progress in its consideration of the second application, the second defendant states that she had known that the Butler North Project was dependant on the purchase order being filled by the plaintiff. Because that statement appears immediately after the six statements of information to which I have referred, it may be taken to draw upon two of them, the first, of the purpose for which the light fittings were required and the second, that the plaintiff had to be used for the project. It is open to consider that what is put as the second defendant's knowledge is no more than her acceptance of what had been conveyed to her.
Had the second defendant known that the Butler North Project was dependant on the purchase order being filled by the plaintiff, there would not have been any reason to include the statements to that end in the six matters of which the second defendant had been informed by the first defendant and Eddy.
To the extent that the statement introducing the letter provides that the Butler North Project was dependant on the purchase order being filled by the plaintiff, it would be unsafe to conclude that it is given other than as a statement of information without identification of its source. Accordingly, it is inadmissible.
The second defendant refers to email communications between Dimitropoulos and Eddy undertaken between 18 and 19 September 2019 of which she had been the recipient of copies. She provides information that the subject of those communications had been completion of the Butler North Project.

In stating the subject of the communications, the second defendant presents a conclusion, not the information actually provided by Eddy. The significant consideration is that the deposition fails to inform the reader of anything more than the second defendant's view of the subject matter of the communications. There is no deposition as to what the process of communication had revealed or of the second defendant's belief in what had been disclosed to her.
In presenting material on the prospect of RNM Systems Pty Ltd incurring liquidated damages, the second defendant follows the same course she adopted in presenting the six statements of information: that by conversations she had with her husband and Eddy she was made aware that RNM Solutions needed the plaintiff to fulfil the purchase order or RNM Solutions Pty Ltd may be required to pay liquidated damages under its contract to complete the works on the Butler North Project. She has not identified her informant. There is no statement of her belief in what her informant or perhaps each of them had communicated to her.
There is no other material in the second defendant's affidavit that relates to RNM Solutions Pty Ltd other than in the form of an unfounded conclusion expressed as a belief absent any source of information and a statement of information with no specified source. The former is the second defendant's understanding that the consequence of not signing the fourth application would be that the Butler North Project could fall through and that would be disastrous for the business of RNM Solutions Pty Ltd. The latter, that she was told that if she did not sign, the consequence for the business of RNM Solutions Pty Ltd would be that the Butler North Project could not be completed and RNM Solutions Pty Ltd would be subject to liquidated damages. The content of each of each of those passages is inadmissible.
The only admissible material revealed upon analysis of the material that relates to RNM is of the existence of the purchase order. It would not inform the statements of information expressed in each of the first and third of the stated beliefs held by the second defendant on the relevant date: that if she did not sign the fourth application there would be significant consequences for RNM Solutions Pty Ltd and that she had to sign or the business of RNM Solutions Pty Ltd would suffer. As statements of information and as statements of belief each of those statements is inadmissible.
As none of the three stated beliefs of the second defendant are admissible, the proposition that they would at least in part account for the contended special disability of the second defendant is not established.
Although the second defendant does not put a case that would draw on the prospect that either any discrete period of time or simply the effluxion of time had generated the prospect that liquidated damages would be payable by RNM Solutions Pty Ltd, because payment of liquidated damages commonly engages with delay in contractual provision, before leaving the material that relates to RNM Solutions Pty Ltd, it is worth recording that there is no admissible material that would project the prospect that at any point there had been any degree of urgency in RNM Solutions Pty Ltd meeting the terms of the plaintiff's request that 'it make a further application for credit'.
Although on or about 26 July 2019 the plaintiff had made that request, RNM Solutions Pty Ltd did not respond in accordance with the terms specified in the form provided to it for that purpose until 20 September 2019. Within that period, it had applied but with some provisions of the form deleted. For a period that may have amounted to some 20 days, it had not been aware of the result. Had it become aware of the result immediately after the communication from the second defendant to Dimitropoulos of 15 August 2019, there followed a period of at least 35 days before it applied on 20 September 2019.
The evidence that on 25 September 2019 Dimitropoulos had enquired of Eddy as to progress in obtaining the guarantee of the second defendant, admits the prospects that he had expected that at or about the time that he had requested of Eddy that the second defendant also sign, Eddy had then so informed the second defendant and that by 25 September 2019, she had then had sufficient time to consider both the request and the content of the guarantee and whether she would obtain advice.
There is no admissible material that would suggest that there had been any urgency in the second defendant determining whether she would comply with the plaintiff's request.
The submission that at the time she gave the guarantee the second defendant was in a position of special disability due to RNM Solutions Pty Ltd having to pay 'liquidated damages' if credit was not advanced to it by the plaintiff is not established.
Another ground for the second defendant's contention that at the time of signing the guarantee incorporated in the fourth application she would be viewed as being in a position of special disability is that that family stresses had rendered her vulnerable, emotional and stressed. According to the second defendant's submissions, the material by which family stresses would be evident is provided in three passages of her affidavit. Those passages are introduced by the deposition that she had 'a number of significant personal matters going on at this time'. The content of first passage relates to her mother; the second, to her son; and the third, to her husband.
Before considering the content of each of those passages, there are two observations to be made. The first relates to the utility of their content. In the passage that relates to her son the second defendant uses the expression 'distressful for our family'. There is otherwise nothing in any of the passages that suggests that the impact of their content on the second defendant had rendered her vulnerable, emotional and stressed. The second is that it is only by the introductory deposition to the three passages that there is any specification of the period to which their content relates. In so deposing, the data that the second defendant specifies are two paragraphs of the affidavit of Dimitropoulos. By the first he locates events of 20 September 2019, by the second, on 25 September 2019, each of which predate the relevant date. Although by her submission the second defendant would enlist the content of the three passages to the task of supporting a finding of special disability on the relevant date, their content relates to the period immediately prior to that date.
In the first passage the second defendant describes her mother as then aged 79 and living alone. Following surgery for pancreatic cancer her mother had been receiving chemotherapy 'which was taking a massive toll on her body'.
Had the second defendant provided admissible material relating to her mother's condition it is probable that in the process she would provide at least the approximate date she was informed of each of the diagnosis, the surgery and the period in which chemotherapy had been administered most proximate to the relevant period.
Although by her description of her mother the second defendant would provide context in which she presents her mother's reliance upon her for care, specifically for cooking and cleaning, she does not provide any evidence of her engagement in the provision of care at any time during the period since the date of her mother's diagnosis.
The conclusion specified in the second defendant's evidence: that she had a number of personal matters going on in the specified period, would not in part, be established by the deposition she provides relating to her care for her mother. There is no admissible material that would establish any other consequence of the second defendant's care of her mother as a factor contributing to that conclusion.
The second passage upon which the second defendant relies to establish that she had a number of personal matters going on in the specified period relates to her son. He 'was being bullied at school which was distressful for our family'.
Because the contended bullying had been at school, it is more likely than not that the second defendant had been informed of its occurrence. Her informant is not identified. As a statement of information, the contention is inadmissible.
In any event, because there is no evidence by which the behaviour that the second defendant characterises as bullying would be established; what is asserted would be a conclusion. In addition, there is neither an explanation of the meaning of the term 'distressful for our family' nor evidence to locate its impact on the second defendant. The term 'distressful to our family' is an unsupported conclusion.
The second defendant deposes that 'we were investigating how to relocate him to a school outside of our zoned district'. Thereby she may be taken to indicate that at some time she or her husband or both of them had been engaged firstly in locating a process and secondly engaging in that process to that end.
There is insufficient specificity at that point to permit both reconciliation of that part of the content of the passage with the first defendant's departure overseas on 23 September 2019 and its correlation with the period during which the second defendant contends she had a number of personal matters going on.
The conclusion that the second defendant had a number of personal matters going on in the specified period, could not in part be established upon the unattributed statement of information relating to her son.
The subject of the third passage upon which the second defendant relies in order to establish that she had significant personal matters going on in the specified period is her husband's absence from 23 September 2019 to 28 September 2019 when he was overseas for a conference. She deposes that she was left to look after her children and her mother with no support.
There is nothing to explain what the second defendant means by the word 'support', that I take it she uses with reference to her husband. There is no evidence of her husband's support at times that he was not overseas.
Because the reason given by the second defendant for her husband's travel had been to attend a work conference, it is open to consider that both the period of his absence and the consequences for the second defendant had been predictable. Those prospects open for consideration a range of possibilities that are not amenable to evaluation due to the lack of evidence.
There is no evidence of the second defendant's actual engagement in the provision of care to her children or her mother during the period of her husband's absence. She does not specify the impact that her husband's absence had on either her ability to attend to the care of her children or her mother. Ultimately, the stated impact of her husband being overseas is a conclusion unsupported by any admissible material.
The conclusion specified in the second defendant's evidence: that she had a number of personal matters going on in the specified period, would not in part be established by her husband's absence.
Other than the first defendant leaving Australia, there is no admissible material that establishes any event the subject of the three passages within the period specified in the deposition by which the three passages are introduced. There is no admissible material that establishes any consequence of the subject of each of the three passages in the second defendant at any particular time.
The content of those passages is of no utility for the purpose of establishing that at the time the second defendant signed the guarantee, family stresses had made her vulnerable, emotional and stressed and thereby subject to special disability.
During the specified period the second defendant had received the plaintiff's request, she had considered the request prior to her initial response and she had given that response. Whatever had generated impetus for the consideration of whatever matters that led to her 'at all stages' statements had had its effect. The second defendant had given further consideration to the request prior to the first of her 'at all stages' statements. She gave the statements and subsequently repeated the same statements.
At each of those points it had been open to the second defendant to provide evidence that would account for the deposition that she had a number of significant personal matters going on and the submission that she had been rendered vulnerable, emotional and stressed.
There is no admissible material that suggests that either family stresses or that she had been vulnerable, emotional and stressed had any part to play in whatever had transpired in the period prior to the second defendant signing the fourth application.
Although the second defendant provides evidence that she does not recall signing the fourth application as guarantor, she does not attribute that failure to either any event on the relevant date or having been vulnerable, emotional and stressed.
It may be considered artificial that some influence on the second defendant however generated would end abruptly on the day prior to the date on which she submits it had an impact. Two observations are appropriately recorded. Firstly, the period to which the material relates reflects the second defendant's evidence. Secondly, there was evidently a point in the relevant period; a period more or less the same as that outlined by the specified period, at which the second defendant's reticence to comply with the plaintiff's request had been somehow resolved, become less prominent or had been displaced, with the result that her reticence to sign the fourth application as guarantor had been replaced by her preparedness to do so. There is no reason to consider that any other influence would not also be amenable to change with the result that its impact could either abruptly resolve or diminish.
Upon recognising that the impact of the evidence is limited, it is not open to the reader to ignore the specification. The result is that the content of the three passages would not establish a case for a finding of special disability at the time that the second defendant signed the guarantee unless the reader infers that the consequences generated by their content had endured beyond the specified period.
Taking into account the results of consideration of the material that relates to the specified period, to so infer would be to no useful end.
The remaining feature of the case by which the second defendant contends that at the time she gave the guarantee she had been in a position of special disability is put as follows:
Lack of explanation where an explanation was required-in reliance on [her husband] and on the understanding that the guarantee was in the same or similar terms to the guarantee incorporated in the first application, [the second defendant] signed the fourth application without properly reading [the] same. [The second defendant] was not aware that the fourth application incorporated significantly more onerous terms, namely a charge over her current and future property (which was not a clause included in the first application).
The submission presents some difficulties. The first is that it is not clear whether the requirement for which the second defendant contends would emerge upon establishing each of the matters specified in the balance of the submission. The second is that as the second defendant does not contend that the plaintiff had been aware of any of those matters, presumably she would contend that the requirement would emerge other than due to it being so aware. The third is that whilst it is open to consider that the explanation required would be informed by the same matters, there is nothing to indicate that the second defendant intended to so limit the submission.
Some of those difficulties are resolved by the failure of the second defendant to provide admissible material that suggests that at any material time she had not been aware that the fourth application included a charge over her current and future property; that she had relied upon her husband; that she had understood that the guarantee was in the same or similar terms as the guarantee incorporated in the first application; that she signed the fourth application without properly reading the same; and that she was not aware that the fourth application incorporated significantly more onerous terms.
The result of there being no support for any of the specified conditions that the structure of the submission suggests would generate the requirement, what remains of the submission is the contention that there had been lack of an explanation. The issue then presented is whether at the point of signing the document, lack of an unspecified explanation would be likely to generate any measure of disadvantage in the second defendant. She does not so contend.
By part of the second defendant's response to Eddy after he had conveyed the plaintiff's request that she sign the fourth application as guarantor, she had questioned the need for her to do so. Having repeatedly asked Eddy to convey her response to the plaintiff, that part of the response may be taken to be a request for an explanation.
Other parts of the response that may be taken to inform the question of the need for the second defendant to comply with the plaintiff's request had been that she should not be signing the document as she was not a director of RNM Solutions Pty Ltd and that she did not feel comfortable signing any documents for RNM Solutions Pty Ltd.
By what I take to be her subsequent 'at all stages' statements the second defendant had informed Eddy that she was not comfortable signing the guarantee; that she did not see that it was necessary; and that she was not a director of RNM Solutions Pty Ltd.
It is open to consider that the reason for the change from the initial response to the 'at all stages' statements is that the second defendant had either reflected upon and understood the terms by which Eddy had expressed the plaintiff's request or that she had been otherwise informed that she had been asked to give a commitment as guarantor rather than either undertake any action as a director of RNM Solutions Pty Ltd or to sign the application for particular terms of trade on its behalf.
That not being a director of RNM Solutions Pty Ltd is a common feature of both the initial response and the 'at all stages' statements, would not detract from the conclusion that the 'at all stages' statements had revealed a different understanding of the plaintiff's request to that conveyed by the initial response because unlike the first application, the fourth application specifies that all directors of a corporate applicant provide a guarantee.
Unlike what may be taken to be a request expressed in the second defendant's initial response to the plaintiff's request, the statement by which she put her view of the necessity for provision of the guarantee in her 'at all stages' statements suggests an understanding of the context then presented to the second defendant sufficient to enable her to discern and express a view by reference to a test that provides no scope for qualification.
Whether the second defendant's initial response had ever been considered by the plaintiff to be a request for an explanation depends upon whether either it or both that response and the second defendant's 'at all stages' statements had been communicated to it. Although the second defendant had repeatedly asked Eddy to relay her initial response to the plaintiff, there is no admissible material to suggest that either he or anyone else had done so. Although she had asked Eddy to make her 'at all stages' statements clear to the plaintiff there is nothing to suggest that either he or anyone else had done so.
There is no admissible material that would suggest that during the relevant period anyone had communicated to the plaintiff anything about the second defendant that suggested her attitude to its request.

Had the plaintiff been aware of only the second defendant's initial response, there is nothing to indicate that it had provided any explanation to her. From the perspective of the second defendant, regardless whether and when the plaintiff had been so informed, by the time that she first made her 'at all stages' statements, she was aware that her initial response had been either uninformed or informed other than by the terms of the request conveyed to her by Eddy. By that time, it would be of no consequence that the plaintiff had not responded with an explanation.
Had the plaintiff been aware of each of the second defendant's initial response and her 'at all stages' statements, it had been open to it to perceive that the by the latter the second defendant had realised that she had been asked to sign the fourth application as guarantor rather than in the capacity of director or otherwise on behalf of RNM Solutions Pty Ltd.
The projection of such an understanding by the second defendant's 'at all stages' statements would obviate any perceived need on the part of the plaintiff to respond to the second defendant's initial response. It would also have been open to the plaintiff to view the second defendant's statement of necessity provided in her 'at all stages' statements as it is projected in her deposition: her view rather than as a request for information. Further, that having developed a view of the necessity for her provision of a guarantee, the second defendant had sufficient resources to enable her to come to that view and conceivably to justify her view.
There is nothing that suggests that the second defendant had made any other request for an explanation.
It is open to consider that the reason for an explanation being provided for or of a proposed transaction may also emerge from the nature of the transaction, the content of the document that records its terms or for a particular purpose of a person who would engage in the transaction.
At the time that the second defendant commenced providing her 'at all stages' statements she was aware that the subject of the plaintiff's request was her provision of a guarantee. For the second defendant to establish ground to consider that prior to that time she had been disadvantaged by not knowing the nature of the transaction proposed by the plaintiff would depend upon her provision of admissible material that would suggest some measure of disadvantage. There is no such material. In any event, the special disability for which the second defendant contends would emerge at the end of the relevant period.
The second defendant deposes that since she signed the fourth application, she has reviewed its content. The only evidence that she provides of the review is to specify where the charge is located in the guarantee incorporated in the fourth application. There is nothing to suggest that in the process of review she had any difficulty in discerning the existence of the charge. There is nothing to suggest the second defendant had any difficulty in discerning the effect of either the charge or the balance of the guarantee.
To the extent that it may be considered that there had been reason to draw the charge to the second defendant's attention prior to her execution of the fourth application, there is no admissible material that suggests that at any time during the relevant period, the second defendant had not been aware of its presence in the fourth application. The same observation would relate to the prospect that the second defendant had not then been aware of the effect of the balance of the guarantee. If during the relevant period the second defendant had undertaken the same process that she later took for the purposes of the review, there is no reason to consider that it would produce a different result.
The fact that the second defendant utilises the word 'review' in referring to the process by which she locates the charge in the guarantee, suggests that it had been undertaken after some prior consideration of the content of the fourth application. There is no admissible material that bears upon that prospect other than that the second defendant does not recall reading the fourth application at the time of signing and that in the course of the review she had seen that the guarantee included the charge. It is not clear whether by the latter the second defendant intended to depose that it was by the review that she had first become aware of the charge. There is no admissible material that reveals whether or not she had read any part of the document during the relevant period.
There is no admissible material that suggests that either the charge and its engagement or the operation of the balance of the guarantee has generated any measure of disadvantage in the second defendant.
To the extent that it may be considered that there had been reason to provide some explanation of the fourth application to the second defendant prior to its execution by the second defendant, there is no admissible material that suggests that after the second defendant commenced making her 'at all stages' statements she had not been aware of the purpose of the fourth application and the reason for the plaintiff's request that she sign the fourth application as guarantor. The fact that she had then developed a view of the necessity for her to do so suggests that the second defendant understood the plaintiff's reason for requesting that she provide the guarantee.
Although over the course of the relevant period the second defendant may somehow have benefited from the provision of some explanation of the transaction presented in the form of the fourth application, the issue presented for consideration by the proposition that there had been want of some unspecified explanation is whether it would account for some measure of disadvantage in the second defendant on the relevant date. There is no admissible material that would suggest any measure of disadvantage in the second defendant attributable to the want of some unspecified explanation either on the relevant date or at any time during the relevant period.
As for the prospect that there had been a particular purpose for which an explanation had been required by the second defendant, it would be likely to be revealed at some point during the relevant period. At the commencement of that period the second defendant had been informed of the plaintiff's request. The admissible material reveals that whatever had generated impetus towards provision of her 'at all stages' statements then had its effect; prior to the first occasion that she gave her 'at all stages' statements the second defendant gave further consideration to the plaintiff's request; she then provided the statements; she repeated the statements; and she signed the fourth application as guarantor.
The extent of the period between the second defendant's initial response and the first occasion that she delivered her 'at all stages' statements is not specified other than that by the designation of the statements as having been given 'at all stages'. Thereby the second defendant suggests that they had been first provided at an early point in the relevant period. Accordingly, any measure of disadvantage that had been established by the lack of some unspecified explanation had been exposed at a relatively early point in the relevant period. Because the second defendant provides no evidence that relates to the circumstances that led to her 'at all stages' statements, it is open to consider that any sense of disadvantage that had previously existed had thereby been resolved. That they had been provided 'at all stages' also provides scope to consider that any such disadvantage would be eroded by both the lapse of time over the balance of the relevant period and by their repetition. Had the second defendant intended to project some different prospect, she is taken to have been aware that the burden of establishing that prospect would be discharged by her provision of admissible material.
None of the balance of the features of the relevant period would suggest that it had established reason for provision of an explanation to the second defendant.
The prospect that reason for the provision of an explanation had emerged other than in response to a request has not been realised. The context revealed upon the hearing of the application does not suggest that the second defendant had somehow been disadvantaged by lack of some unspecified explanation.
Although there is no admissible material that supports the submission that an explanation had been required and there is no reason to consider that the context established by admissible material had generated any other reason for provision of any explanation, the second defendant has provided depositions that draw upon there having been no explanation.
The second defendant states that at no time did 'any party from the plaintiff or any independent third party' explain to her the purport and effect of the fourth application and the incorporated guarantee; at no time did 'any party, independent to me or otherwise' explain the meaning and effect of the fourth application and the consequences of signing the same; at no time did any party explain to her that the document was significantly different to the guarantee signed by her and incorporated in the first application; and that at no time did any party explain to her that the guarantee incorporated in the fourth application included a term that all her property and assets including current and after acquired property, would be charged in favour of the plaintiff and that she could also be sued for any money due by RNM Solutions Pty Ltd to the plaintiff.
The second defendant was aware that Eddy had been engaged in communications with Dimitropoulos over the period of two days immediately prior to him conveying the plaintiff's request that the second defendant sign the fourth application as guarantor. It was Eddy to whom the second defendant gave her initial response and repeatedly asked that it be conveyed to the plaintiff. It was Eddy to whom the second defendant had made and repeated her 'at all stages' statements and asked to make her position clear to the plaintiff. If during any part of the relevant period the second defendant did not have the fourth application in her possession, Eddy either had the document in his possession or had access to it. There being no evidence of Eddy's relationship with RNM Solutions Pty Ltd, it is not clear whether by her depositions she had intended to include Eddy.
Because the first two statements are expressed in general terms and negate prospects it is safe to consider that the assertions of failure to explain the purport and effect of the fourth application and the incorporated guarantee and of failure to explain the meaning and effect of the fourth application and the consequences of signing, amount to the same proposition. In putting the latter, the second defendant states no 'party, whether independent to me or otherwise', whereas in putting the former she states no 'party from the plaintiff or any independent third party'.
If the second defendant uses the word 'party' as a reference to a member of the class limited by the fourth application, it would be a straightforward matter to consider that for the purposes of the latter statement of failure, the plaintiff and RNM Solutions Pty Ltd are the parties to whom she refers. It would remain to consider whether the second defendant intended that the deposition would extend to her husband; he being the guarantor of a party.
Whether it had been the second defendant's intention that the attribution of the latter expression of failure applies to the former is doubtful because as it is expressed it would allow for the second defendant receiving an explanation from each of RNM Solutions Pty Ltd and her husband.
It is not possible to conclude with any measure of certainty that by her depositions the second defendant has established more than that she had not received the explanation that she outlines from the plaintiff. As for the prospect that the second defendant had not received the explanation from anyone else, because by use of the word 'party' and also the terms by which each of the two statements are expressed admit different conclusions as to whom she intended to refer, her evidence is rendered unclear.
Although the next two statements are expressed simply by reference to 'party', the second defendant's intention in so deposing is subject to doubt due to the ambiguity generated by her failure to establish the meaning that she had intended the word would convey and her lack of consistency in expressing various statements of failure to provide an explanation. Having stated that much, ultimately the point is that if the reference to a party is to a party to the transaction, it is open to consider that some person other than such a party had provided an explanation.
By the statement that the guarantee that is part of the fourth application was significantly different to that incorporated in the first application, the second defendant constitutes the guarantee that forms part of the first application the datum for considering the content of that which forms part of the fourth. In so doing she presents the difference between them as the charge. She also draws into consideration her evidence of the detailed review she had undertaken of the content of the first application.
By that review the second defendant had been made aware that the guarantee included within the first application was constituted by five clauses that set out the rights of the plaintiff; that she had guaranteed due and punctual performance by RNM Solutions Pty Ltd and the payment of any monies due and payable by RNM Solutions Pty Ltd to the plaintiff; and that the guarantee did not include a charge over her personal assets.
Articulating the result of the review as she does, suggests that she understood that by operation of the instrument the obligations of RNM Solutions Pty Ltd to the plaintiff would devolve to her to the extent that they had not been honoured.
There is no evidence that suggests that the process of review had been undertaken with any assistance. For the same reason it is open to consider that the second defendant became aware of the matters that she specifies by reading the document. Because the review had revealed that the guarantee did not include a charge, it is open to consider that she had brought to the task some knowledge or understanding of the terms by which guarantees are commonly expressed, some relevant experience or the benefit of some research.
Other than by the expression 'sometime following the first application date', the time that the review was undertaken is not specified.
Although the submission that the second defendant had relied upon an understanding that the guarantee that forms part of the fourth application was in the same or similar terms to the guarantee incorporated in the first is not supported, that it is made suggests that the second defendant would accept that at the time she signed the fourth application, she had been aware of the result of her review of the first.
The structure of the affidavit also suggests that the review had been undertaken prior to the second defendant executing the fourth application. There is neither any submission nor any material in the second defendant's affidavit that suggests otherwise. Had the second defendant intended to convey that it had been undertaken after she signed the fourth application, the affidavit would neither have been drafted nor deposed to as it has been.
By the time that the second defendant commenced providing her 'at all stages' statements to Eddy, she had been aware that the plaintiff and RNM Solutions Pty Ltd were parties to each of the first and fourth applications and that the plaintiff had requested that she sign the fourth application as guarantor.
It is open to consider that the deposition by which the second defendant puts her view of the necessity for provision of a guarantee in her 'at all stages' statements suggests that she was also aware that her husband had by then provided a guarantee for the purposes of the fourth application.
There is no evidence that suggests that during the relevant period, the second defendant had mislaid her understanding of the operation of the guarantee that forms part of the first application. At least by the time the second defendant commenced providing her 'at all stages' statements to Eddy, she was aware that the plaintiff had asked that she make the same commitment for the same purpose that she had done in the form of her guarantee of the first application.
The context in which the second defendant deposes that no party explained that under the guarantee that forms part of the fourth application she could be sued for any moneys due by RNM Solutions Pty Ltd to the plaintiff is one in which she had been informed by the result of her review of the terms of the guarantee that forms part of the first application that she had guaranteed due and punctual performance by RNM Solutions Pty Ltd and the payment of any monies due and payable by RNM Solutions Pty Ltd to the plaintiff. If future supply to RNM Solutions Pty Ltd was to occur under the terms of the first application that she would be liable for any default by RNM Solutions Pty Ltd.
That enforcement of the guarantee would depend upon the provision of a communication other than in the form of the content of the instrument itself that the second defendant could be sued for any moneys due by RNM Solutions Pty Ltd to the plaintiff would not accord with the context established upon the admissible material before the court.
The same observations apply to the second defendant's deposition of want of an explanation of the effect of the fourth application and the consequences of signing the same.
The issue presented by the second defendant's deposition of failure to inform her of the existence of the charge is whether a person capable of identifying that the first application had not included a charge would be considered as being at risk of not identifying the charge in the fourth. The significance of the second defendant's deposition of failure to inform her of the presence of the charge and its effect is confounded by the fact that she does not depose that she had not been aware of both its presence and effect.
By her submissions the second defendant characterises the charge as onerous. She provides no material to establish that proposition. Because the second defendant choses to so characterise the charge does not establish that its existence ought to have been drawn to her attention.
Until engaged by supply under the fourth application neither the guarantee nor the charge had any effect. Upon such supply the charge engaged to the same extent as the balance of the terms of the guarantee.
Engagement of the charge would not generate any obligation in the second defendant; rather it would confer an advantage on the plaintiff vis a vis the beneficiary of any other charge granted by the second defendant that later engaged. That advantage would not establish either a correlative or consequential disadvantage in the second defendant.
There is no admissible material that would suggest that engagement of the charge had established the second defendant at any disadvantage either vis a vis the plaintiff or anyone else.
The contention that the charge is onerous may draw upon the second defendant's submission that the plaintiff continued to exert unnecessary pressure and create unnecessary stress and costs for the second defendant by lodging an absolute caveat over her residential property. There is no reference to either any caveat or to the specified consequences of its lodgement in either affidavit.
There is no evidence to suggest that the second defendant had not been aware that supply under the fourth application would expose her to the extent of the plaintiff's claim. Whatever her financial resources, judgment against the second defendant generated by supply under the fourth application would expose her interest in property to processes of recovery. Rather than the second defendant's suggestion that the charge would be considered onerous, because she would be exposed to risk by any default of RNM Solutions Pty Ltd, it would be for the second defendant to bring evidence to establish that she had reason to consider that the risk would not expose her interest in property. Put another way, it would have been realistic for the second defendant to register that the consequences of relevant supply would be put against her interest in property. The charge does no more than that. It is for the second defendant to justify the proposition that the context presented to her at least at the point of first articulating her 'at all stages' statements permitted her to reach some different conclusion.

Had the second defendant then been given either possession of or access to the document she has revealed by her review of the guarantee provided with the first application that she had not been daunted by the prospect of reading the terms of a guarantee. Had she read the terms of the proposed guarantee, the result of her review of the first application allows for the prospect that she would be adequately and accurately informed of its content. Although her evidence of the result of the review of the guarantee that had formed part of the first application had revealed the capacity to understand its purport and effect, in the event that she had any difficulty in coming to any conclusion there is nothing that suggests that it had not been open to her to obtain assistance or advice to that end.
In circumstances where the second defendant submits that the plaintiff did not engage with her to ensure her understanding of the transaction and the content and effect of the document and that as a consequence its enforcement of the guarantee is unconscionable, she does not provide evidence to that forecloses on the prospect that she had undertaken any process to the end of informing herself of those matters. There being no evidence to suggest that the second defendant had not had possession of or access to the document and had not read or been informed of its content, there is no reason to consider that she had not been so aware.
The only depositions of the second defendant that may be taken to relate to the subject of communication of the content of the proposed guarantee are that she did not speak with, exchange emails with or have any other communication with either Dimitropoulos or any other representative of the plaintiff in relation to signing the fourth application and that at the time of signing the fourth application she does recall reading the fourth application. Neither of those depositions exclude the prospect that during the relevant period she had at least access to the fourth application.
In the event that the second defendant had not had the opportunity to engage any process by which she could inform herself of the content of the document to the extent that she considered would be appropriate, it is reasonable to consider that there would be a deposition and a submission to that effect. There is neither. The second defendant deposes that since signing the fourth application she reviewed the fourth application. Her choice of the word 'review' suggests that she had previously read its content.
The force of the second defendant's second submission is that the court would consider that the appropriate or necessary means of communication of the effect of the transaction for the purposes of her second case would be by speaking directly to the second defendant.
The failure of the plaintiff to speak directly with the second defendant would only be significant if thereby the second defendant had no understanding of the impact of the instrument upon her. The result of her review of the guarantee contained in the first application along with what Eddy had conveyed to her in presenting the plaintiff's request reveals that she was aware of the nature of the proposed transaction. Although the second defendant has given no evidence of the extent of her reading of the fourth application prior to its execution, she had been sufficiently informed by some means prior to first providing her 'at all stages' statements that she had been aware that the transaction proposed by the plaintiff had been that she guarantee an application for credit to be made to the plaintiff by RNM Solutions Pty Ltd. In the absence of evidence to suggest the contrary, because she was not then a director of RNM Solutions Pty Ltd she would understand that the obligations established by the proposed application on a guarantor could only apply to her in her personal capacity.
Had the plaintiff considered how best to achieve the result of adequately and accurately informing a proposed guarantor of the content of a guarantee and its purport and effect, there is no reason to consider that it would choose to do so by speaking directly to that person. It is unlikely that the plaintiff would consider itself competent to undertake that task to the standards now proposed by the second defendant. Taking into account those standards it is unlikely that the second defendant would accept that the plaintiff would be competent to do so. It is more likely that the plaintiff would persuade itself that its interest would be best served by providing the proposed guarantor with the means by which he or she would be adequately and accurately informed of the content of the guarantee and its purport and effect. There is no reason to consider that it would adopt any different approach in its dealings with a current guarantor.
In the context provided by the application it is the second defendant that puts the case and advances the submission. She bears the onus of providing sufficient admissible material to support her case, at least to the extent that it would impinge upon the clarity of the case put forward by the plaintiff in its application for summary judgment.
In that context the second defendant raises the issue of the failure of the plaintiff to communicate directly with her. There is no material that would translate that failure into the proposition that it would be unconscionable for the plaintiff to enforce the guarantee. The document contains the information necessary for the purpose of informing the second defendant of the terms of the proposed transaction.
The third submission put to establish the case of failure to adequately and accurately explain the transaction constituted by the guarantee and its purport and effect is that no party independent to the second defendant or otherwise explained to her the purport and effect of signing the fourth application.
The third submission does not specify those who fall within its scope. That lack of clarity in its expression reflects the same issue in the depositions of the second defendant that would support the submission.
In accordance with common useage, in the context established by the application, the scope of the reference to 'party' would draw upon the parties to the fourth application. Whether the second defendant intended that the deposition would extend to her husband depends upon whether she had considered that the guarantor of a party to the application would be included. As there is no evidence to establish the relationship between Eddy and RNM Solutions Pty Ltd it would be open to consider that he too had not been included. Neither any legal practitioner nor other category of advisor would be included. In each of those instances the qualification 'independent to the second defendant or otherwise' provides no assistance.
Although there is no evidence that anyone explained to her the purport and effect of signing the fourth application, the manner in which the second defendant provides evidence leaves open the prospect that her depositions do not exclude having received an explanation from her husband, Eddy, any legal practitioner or any other advisor. Whilst they may be taken to support the submission, the utility of the submission is compromised.
From the perspective of the second defendant, the context in which Eddy had conveyed the plaintiff's request may or may not have been informed by her past or present exposure to the plaintiff under the terms of the guarantee provided with the first application. None the less, having been informed by the results of her review of that guarantee; the terms of plaintiff's request as it had been expressed by Eddy; the fact that she was no longer a director of RNM Solutions Pty Ltd; and by whatever impetus had resulted in her 'at all stages' statement to Eddy that she did not see that her provision of a guarantee was necessary, at least by the time that she first expressed that statement, it is open to consider that she had been aware that she would be personally liable for any default of RNM Solutions Pty Ltd in relation to any supply under the fourth application. The first of those sources had revealed the scope of the undertaking that she had given during the period of her directorship; the balance would establish the undertaking sought as being other than in her role as director. Regardless, the second defendant was then aware of both the purpose of the guarantee proposed by the plaintiff and the identity of the parties to any arrangement for supply established as a consequence of its provision. In the absence of any admissible material to suggest a different result, the combination of there being a request of the plaintiff that she sign a document between it and RNM Solutions Pty Ltd for the same purpose for which she had signed the guarantee provided with the first application would establish that the guarantee proposed would bring the same results as the guarantee provided by the first application.
Although it may be the case that no one explained to the second defendant the purport and effect of signing the fourth application, the context reveals scope for the second defendant to achieve a result similar to that produced upon her review of the first application.
The request of the plaintiff conveyed to the second defendant by Eddy was that the plaintiff had requested that she sign a credit application as guarantor for RNM Solutions Pty Ltd. Although her response indicates that she may have misunderstood the request, by the time of her first 'at all stages' statement to Eddy she stated that she was not comfortable signing a guarantee. The fact that she then also stated that she did not see that it was necessary for her to do so suggests that she had then been sufficiently aware of the purpose for which the guarantee would be required to enable her to form that view and the confidence to express to Eddy that it be forwarded to the plaintiff.
At the time of her deposition the second defendant stated with reference to the issue of necessity for provision of her guarantee, her understanding that the issue of necessity would engage with the plaintiff's interest in ensuring that it was properly secured. It is difficult to avoid the conclusion that her understanding had been informed at least in part by her review of the first application, particularly that the guarantors had guaranteed due and punctual performance by RNM Solutions Pty Ltd and the payment of any monies due and payable by RNM Solutions Pty Ltd to the plaintiff.
By the terms of the request put to her by Eddy the second defendant was informed that the parties to the first application and the parties to the fourth application were the same, as was the purpose of the arrangements that would be established by the fourth application.
By the time that the second defendant first made her 'at all stages' statements she was aware that the fourth application included a guarantee and that by the request conveyed by Eddy that she had been asked to provide her guarantee. An assessment of the admissible material and the submissions reveal that the second defendant does not present a case that suggests she would have any difficulty in locating or discerning her interest in the transaction.
For the purposes of each of the second defendant's first case and the earlier submissions in the second, the submissions that the guarantees that form a part of each application had been different has been taken to be limited to the charge.
The significance of the failure to inform the second defendant of the presence of the charge is not established by any admissible material. The charge did not establish the instrument as other than a guarantee. The impact of the charge would be no more than that it would take effect to the same extent as the balance of the terms of the guarantee. Its engagement would not generate any obligation on the second defendant. The security provided to the plaintiff by the charge was to the same extent as that provided by the balance of the guarantee.
The second defendant deposes that at no time did she receive independent legal advice prior to signing the fourth application.
The term 'independent legal advice' is not explained. The terms of the deposition would not exclude the second defendant receiving advice from a legal practitioner. That being the case, use of the term 'independent legal advice' establishes both lack of clarity in her evidence and that support for the submission is subject to doubt.
The balance of the deposition that relates to provision of legal advice is that the second defendant had not been offered an opportunity to obtain such advice. Regardless the lack of such an offer, by the time she signed the fourth application the second defendant had a period of five clear days in which to consider the document and whether she would obtain advice in relation to its content.
By her evidence of the review of the first application the second defendant reveals that she has the capacity to undertake the task of reading and understanding the terms of a guarantee. Such an appreciation of her capacity to read and understand the content of a guarantee is reinforced by the deposition that the second defendant also reviewed the fourth application. She does not depose that she was assisted on either occasion.
The second defendant provides no admissible material that would establish that prior to signing the fourth application as guarantor, she had not read the guarantee, had not understood its terms, had not sought and obtained advice, had been unaware that the guarantee in the fourth application included a charge and had not understood how both the charge and the balance of the guarantee would operate.
The significant consideration raised by the second defendant's second case is whether she had any difficulty in locating and discerning her interest at the point that she entered into the transaction. Although the second defendant neither discloses the whereabouts of the application in the period prior to her execution of it nor the extent of her reading of it, she was then aware of the effect of a guarantee. That conclusion is established by her understanding of the guarantee that is part of the first application.
As for the charge, the second defendant has revealed that she had capacity to recognise a charge. Whether the second defendant's ability to recognise a charge would also convey that she would understand its terms and effect is of little consequence as its impact is no more extensive than the balance of the guarantee. It would impose no burden on the second defendant but only promote the interest of the plaintiff in circumstances where despite the balance of the guarantee, it would otherwise confront some risk that it would not recover for the value of goods supplied under the fourth agreement due to the prior engagement of some other charge.
Despite the presence of the charge in the guarantee contained in the fourth application, it remained a guarantee. The charge does not add to the purport and effect of the guarantee.
There is nothing to suggest that by signing the document when she did, she had foreclosed upon an intention to seek advice in relation to its content.
At the point of considering the exercise of discretion, it is difficult to avoid characterising the second case as being that it is directed to a context different to that established by the admissible material. In the course of presenting the second case the second defendant has ignored the features of the context that reveal that she had at least some familiarity with the proposed transaction. The extent of her understanding of the proposed transaction is central to the result of the action and thereby the relief sought in the application. In the context presented at the hearing of the application the issues raised by the second defendant in her submissions are put to the proposition that they reveal failure to facilitate the second defendant's understanding of the proposed transaction rather than what might be characterised as a better understanding. Because the second defendant does not depose to her understanding of the proposed transaction the court is left to speculate whether there had been reason for the second defendant being brought to a better understanding.
Beyond that focus, the second defendant has failed to explain how she would accommodate within her view the of the proposed transaction and its effect both the fact that she was no longer a director of RNM Solutions Pty Ltd and the reason to consider that a document that generates obligations need specify that it be amenable to the process of litigation. To the extent that the second defendant relies upon the significance of the charge, because neither her views nor the charge have real significance, that assessment has no bearing upon the exercise of discretion.
The significance of the reference to the context in which the case is put is that the second defendant had established a period of five clear days within which to consider the terms of the transaction and to take advice. Had she needed further time she had established the mechanism to achieve that result.
It is difficult to avoid the prospect that in the event that the second defendant had refused to sign the fourth application she would be liable for any future supply by the plaintiff under the terms of the first application.
The charge is a feature of the security provided to the plaintiff, yet it is incidental to the guarantee. The transaction the subject of the second defendant's second case is the guarantee. In the event that it is considered that the charge called for an explanation and that it had not been provided, the issue raised is whether the guarantee would fail due the failure to provide an explanation of the charge. The case upon which the plaintiff relies is independent of the charge. Upon an exercise of discretion the failure to explain the charge would be sufficient to engage the result that the failure to inform would be visited on the plaintiff by dismissal of the application.
Whatever detriment may be considered to flow to the second defendant from the manner by which the plaintiff proceeded to implement the result of its review the context revealed in the course of the application is not such that it would justify the conclusion that it would be unconscionable for the plaintiff to rely upon the second defendant's guarantee.
As was the case in considering the second defendant's first case, there is no reason to consider that the second defendant's second case would be assisted by future access to documentation to which the second defendant has no present entitlement.
The second defendant's second case does not provide any reason to exercise discretion in her favour.
By the third case put against the plaintiff in the application the second defendant contends that she has a case for relief from both the charge and the guarantee on the basis that they are each unfair.
In resisting the application for summary judgment, the second defendant would not be expected to establish that case, however the material that she provides in the form of depositions and submissions should be subject to scrutiny to determine whether there is sufficient reason to either justify dismissal of the application or to have a bearing upon an exercise of discretion whether or not to enter judgment for the plaintiff.
The submissions upon which the second defendant relies to establish that case are as follows:
1.the charging clause causes a significant imbalance in the party's respective rights under the agreement, namely, the risk of the loss of [the second defendant's] family home, when she, and her family, are unrelated to the business;
2.the charging clause (and all other clauses relevant to [the second defendant] as a guarantor of the fourth application) is not reasonably necessary to protect the legitimate interests of the plaintiff in its dealings with the business [of RNM Solutions Pty Ltd]; the plaintiff was more than adequately secured by the interests of [the first defendant] alone; and
3.it would cause significant detriment to [the second defendant] if the guarantor clauses were applied to [the second defendant] including, the loss of the family home;
4.the charging clause was not transparent in that the plaintiff was unaware that the clause was not included in the previous applications signed by [the second defendant], yet did not bring the clause to [the second defendant's] attention when procuring her to sign the fourth application; and
5.the guarantor clause, as against [the second defendant], was unnecessary to protect the legitimate business interests of the plaintiff as the plaintiff was adequately secured by the guarantee provided by the [the first defendant]. Specifically, in order to be adequately protected in its dealing with the business [of RNM Solutions Pty Ltd] the plaintiff required security of around $360k. The security that had already been provided by [the first defendant] alone was around $760k.

The contention that each of the charging clause and the guarantee are unfair is put by the second defendant as arguable.
To the extent that the submissions address the charge, as is the case in the submissions addressed to her other cases, the second defendant misunderstands its effect. It would have no greater impact than to establish and preserve for the plaintiff the extent of the benefit provided by the guarantee in any interest of the second defendant in property. Absent the charge, the same interest of the second defendant in property would be exposed to the same risk of recovery by the plaintiff in the event that an obligation is found to arise under the guarantee. From the perspective of a guarantor the result of supply by the plaintiff would be no different whether it had been undertaken under either the first of the fourth application. As there is no admissible material to establish that at the time of her execution of the fourth application there had been any amount owed by RNM solutions to the plaintiff there is no reason to consider that the provision of the charge had any impact upon the second defendant. Because by its operation the effect of the charge would be considered benign and it would otherwise impose no obligation on the second defendant it could not be characterised as unfair.
By her submission that because the charging clause was not drawn to her attention, its imposition had not been transparent, the second defendant relies upon the plaintiff being aware that the charging clause had not been included in previous applications signed by her and by not drawing it to her attention. According to the admissible material and her other submissions, the only other application had been the first application. There is no admissible material that establishes that prior to the relevant date the second defendant had not been aware that the fourth application included a charging clause. In circumstances where objectively there is no reason for her to do so, the second defendant thereby leaves open the prospect that the contended reason for the lack of transparency would be of no moment.
As was the case with her submissions relating to the second defendant's other cases, she puts no material before the court to suggest the reason for complicating the task of giving consideration to the content of the fourth application by reference to the content of the first.
To the extent that the second defendant submits that the family home is rendered at risk by the charge, there is no admissible material that establishes any proprietary interest of the second defendant in whatever asset she characterises as the family home. In the event that she holds an interest in such an asset, risk is established by the guarantee not the charge.
The second defendant contends that the charging clause establishes a significant imbalance in the rights of the parties under the agreement, as she and her family are unrelated to the business of RNM Solutions Pty Ltd. In essence, the contention is that the debt generated under the fourth application is a business debt of RNM Solutions Pty Ltd. The charge does not confer any right of action by the plaintiff, it is simply a facet of the security provided by the guarantee.
By the second submission the second defendant contends that both the charge and the guarantee had not been reasonably necessary to protect the legitimate interests of the plaintiff under the arrangement for supply of its goods on credit to RNM Solutions Pty Ltd.
The basis for analysis of that proposition is provided by the common law entitlement of a supplier to be paid upon supply. If a supplier chooses to facilitate trade on the basis that payment may be deferred then it takes the risk that its entitlement may somehow be defeated. Making the choice to supply to a customer on some such basis has no bearing on the entitlement to payment only on the timing of payment. There is no reason to consider that payment when an amount becomes due under such an arrangement would not be considered necessary. There is also no reason to consider that the result of the application of that test needs any qualification.
It is open to consider that the plaintiff had sought and obtained the guarantee of the second defendant because it considered that it would be in its interest to have such security so established. It had considered that its entitlement to payment would thereby be secured.
Because there is no admissible material that establishes whether at the relevant date the guarantee provided by the second defendant for the purposes of the first application had been engaged, the circumstances in which the second defendant provided the guarantee the subject of the fourth application are not clear. If there had been any obligation of RNM Solutions Pty Ltd outstanding under the first application, it is evident that at least up until the time that the second defendant provided the guarantee that forms part of the fourth application, the plaintiff had not been prepared to release her from the relationship established by her guarantee.
There is nothing to indicate that there had been any process of negotiation that had preceded the plaintiff's request to RNM Solutions Pty Ltd in July 2019 that it apply for further credit. It is open to consider that a result of the review undertaken by the plaintiff of its credit arrangements with RNM Solutions Pty Ltd had been that it had decided to embark upon a process of substituting one form of unlimited guarantee with another and that in doing so it had been motivated by its interests.
Although the history associated with engagement of the second defendant to the end of her signing the fourth application is as the admissible material provides, had the plaintiff intended provide the terms of trade sought by RNM Solutions Pty Ltd in September 2019 on the same basis as that provided by the first application: that is, that it had the guarantee of each of the defendants, there is no reason to consider that the history would intervene in the process of obtaining that result. Similarly, so the history would not provide a guide to recovery of any judgment against each of the defendants. In the event that it obtained judgment against each defendant it would be the choice of the judgment creditor that determined whether execution was had against one or other or both of the judgment debtors. As much as history would not determine that it would first have recourse to the assets of the first judgment debtor, it would not provide scope for the second defendant to contend that her guarantee had not been necessary.
Had the second defendant refused to provide her guarantee of the fourth application she had no doubt considered that there was a prospect that the plaintiff would supply in reliance upon the terms of the first application.
The second defendant puts in issue the extent of the property interests of the first defendant. Apart from the prospect that the plaintiff had been engaged in the process of substituting one guarantee for another and had no particular interest in the value of the property interests of either of the defendants, the proposition put by the second defendant is that her assessment of value would be a reliable indication of the value of particular property in which the first defendant had an interest. In putting that aspect of the submission, the second defendant has focused upon the extent of the plaintiff's claim. The guarantee she provided is unlimited either by of the extent of security provided or by time. For the purposes of considering the sufficiency of the security provided it is incidental that within a short period after the guarantee had been given by the second defendant, RNM Solutions Pty Ltd defaulted under the terms of the fourth application owing the amount that it did. There is no reason to consider that the limit of the second defendant's potential exposure under the terms of the fourth application would be in the order of the amount claimed by the plaintiff in the action.
To the extent that what would be considered necessary as the level of value of the security takes into account the fact that there was a primary debtor and another guarantor, history reveals that the primary debtor is in liquidation and the other guarantor is bankrupt. It is only by the second defendant's guarantee that the plaintiff would have the opportunity for unrestrained recovery of its entitlements generated under the fourth application.
The contention that the plaintiff was more than adequately secured by the interests of the first defendant would depend upon the assessment that the second defendant makes of the value of the first defendant's relevant assets. It is the assessment of a lay person as to asset value and is unsupported to the extent of liabilities.
The third submission of the second defendant suggests that in the context provided by supply under the terms of the fourth application, the operation of the guarantee would be unfair. It is difficult to understand how the second defendant's recourse to the concept of a fairness could produce the result that the plaintiff would incur loss.
The fifth submission of the second defendant appears to be nothing more than a combination of second and third submissions.
The second defendant submits that at the point of considering whether there is either a clear case for judgment or other reason to dismiss the application, that by her third case she has put an arguable case that the guarantee or simply the charge is unfair.
The fundamental point to be made in relation to the contention insofar as it relates to the charge is that the ultimate end to which the case is put would result in the charge being rendered void. That result would have no impact upon the plaintiff's claim.
As for the guarantee, putting to one side that it includes the charge, at the point that the second defendant gave the guarantee she was the guarantor under the first application. Whilst there is ground to consider that the content of the guarantees is clearly not the same, the second defendant makes no reference to the difference between them as being other than the charge. Guarantees being regarded as simple and relatively straightforward, the guarantee to which the second defendant had been subject when she provided the guarantee for the fourth application would reveal that by provision of the latter guarantee her exposure to risk had not changed. It is in that context the second defendant contends that the guarantee that she then provided would generate unfair consequences. The consequences that she outlines in her submissions would emerge under either guarantee and under any guarantee. The submissions put under the second defendant's third case have no appeal as having any merit. They do not achieve the threshold for consideration that the third case is arguable.
Jurisdiction to provide for summary judgment is subject to an exercise of discretion. The test that applies at the point of considering an exercise of discretion is whether at the conclusion of the hearing and after reflecting upon the admissible material and the submissions the court is satisfied that an applicant has a clear case for the relief sought. But for components of the relief sought for the costs of recovery and interest, no issue was taken by the second defendant with the plaintiff's claim.
The lack of clarity revealed by these reasons is due to the manner in which the second defendant has undertaken the task of presenting each of the cases she puts in opposing the application. None of those cases has been supported with sufficient admissible material to establish doubt that the guarantee upon which the plaintiff relies be enforced. The second defendant has referred to the prospect that should the action proceed to trial she would have access to documents that would assist her in establishing the cases she puts. In that event she may have access to additional documents, however the deficiencies in each of her cases would not be remediated by documentary material.
As for the collection fees, the second defendant contends that there is an insufficient case put in the application to establish the claim. The plaintiff's case in relation to that part of its claim is presently insufficiently established to provide for judgment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
30 JUNE 2022